Monday, July 15, 2013

Should a Party Get Discovery Before Responding to an SJ Motion?




Greenberg Traurig says it's not really necessary; Judge Middlebrooks says it is probably a good idea:
In response, Plaintiff argues, inter alia, that the Motion is premature at this time since Plaintiff has not had the opportunity to conduct any discovery whatsoever in the case. The Court agrees with Plaintiff to the extent it argues that summary judgment should be denied as premature. At the time of the Motion, Plaintiff had no opportunity to conduct any discovery. Accordingly, Plaintiff cannot be expected to consummately respond to the factual contentions Defendants raise in their Motion. See Smith v. Florida Dep’t of Corrections, 713 F.3d 1059, 1064 (11th Cir. 2013) (“Summary judgment is premature when a party is not provided a reasonable opportunity to discover information essential to his opposition.”).
Score one for the federal rules?

7 comments:

Anonymous said...

Actually, I'm not so sure that you score one for the federal rules here. First, Rule 56(b) specifically states that "a party may file a motion for summary judgment at any time until 30 days after the close of all discovery." Judge Middlebrooks's order, and the quotation from the Eleventh Circuit decision that he cites, suggest that there is some general "premature" standard. That I disagree with.

I recognize, of course, the existence of Rule 56(d), which permits a nonmovant by affidavit or declaration to state that it needs discovery before being able property to oppose a motion for summary judgment. But it is unclear to me whether the plaintiff in this case actually submitted an affidavit or declaration stating that it couldn't present facts essential to justify its opposition. It appears to me that Judge Middlebrooks essentially ruled consistent with the spirit of Rule 56(d), and thus I have no real problem with his ruling. But as for following the *letter* of the rule? Sorry, SFL. I think not. If the plaintiff had asserted only that the motion for summary judgment was premature, and if the plaintiff submitted no affidavit or declaration, Judge Middlebrooks would have been well within his discretion in allowing the motion for summary judgment to proceed.

Anonymous said...

4:01 here again. By the way, that Smith decision of the Eleventh Circuit involved a pro se litigant who was in prison. The Eleventh Circuit cited Rule 56(d) various times in its decision. The Court then wrote that "under the more lenient standards afforded to pro se litigants, Smith made a sufficient showing -- through his response and his previous motions to compel -- to the district court that he was unable to present essential facts in support of his opposition to summary judgment."

Unless the plaintiff in his case was a pro se litigant, if anything, Judge Middlebrooks gave the plaintiff a break despite the plaintiff's (apparent, based only on the face of the order) failure to follow the rules.

South Florida Lawyers said...

Ok I see your point. He seems to have accepted the general notion that if it is early there must be a need for discovery, even though it is unclear here whether the dec was filed attesting to that need in opposition.

Anonymous said...

More from OCD esq.

Anonymous said...

It's middlebrook. Lets not look as this as guiding law.

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